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Court: Domain Seizures Don't Violate Free Speech 96

Posted by Soulskill
from the that-was-fast dept.
Since last year we've been following the story of how domains are being seized by the U.S. government for allegedly facilitating online piracy. The seizures received a legal challenge back in June from the owners of one such site, and now a U.S. federal court has returned a ruling in the matter: "District Court Judge Paul Crotty decided to deny Puerto 80's request, which means the domain will remain in the hands of the U.S. Government. The Judge argues that seizing Rojadirecta's .com and .org domains does not violate the First Amendment of the Constitution. 'Puerto 80's First Amendment argument fails,' the Judge writes. 'Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the "forums" on its websites, which may be accessed by clicking a link in the upper left of the home page. The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous.' The judge further ruled that the claimed 32% decline in traffic and the subsequent harm to Puerto 80s business is not an issue as visitors can still access the site through foreign domains. Puerto 80's argument, that users may not be aware of these alternatives, was simply waived."
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Court: Domain Seizures Don't Violate Free Speech

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  • I somehow doubt that the SD article actually states what we want to know. Anybody actually read the article?

    • Oh, I don't know. TFS states all you really need to know

      visitors can still access the site through foreign domains

      What else do you think is important? That the idiocracy that is the US has only publicized this site MORE by taking this site down, and then in the rash of publicity saying... it's all good you can still watch all this illegal stuff over HERE.

      Personally, I did not know about this site until now, and simply doing a google search for the company name, returns ALL of the 'foreign domains', some of which are nothing more than IP addresses.

      Streisand eff

      • by EdIII (1114411)

        It does not make any sense though.

        Free speech so far has not been extended to include the idea that preventing you from having a "soap box" in cyberspace to "speak" to others is protected behavior. The judge is technically correct. Puerto Rico also has a different relationship than any other foreign country, because it is in a state of "flux". They are technically US citizens, but denied the full rights of a US citizen, and still have not resolved whether to become an independent country or the 51st stat

        • by AK Marc (707885)
          "You still have the freedom to travel, so if you can travel to a foreign country and say this, then the US has not abridged your freedom of speech" does not make a compelling argument that laws directly abridging freedom of speech don't abridge freedom of speech so long as freedom to travel and such aren't abridged. And from where I sit, that's what the judge found. Baning the speech in the US didn't ban the speech, thus the speech (though banned by law and government action) was not banned. That's just
  • by hsmith (818216) on Friday August 05, 2011 @04:26PM (#37000376)
    Color me surprised that the Government sides in its own favor in its own cases.
    • Color me surprised that the Government sides in its own favor in its own cases.

      I'd actually go out of a limb and suggest that maybe this below is a the root of the decision, not a by-default mechanism to judge to the government's favor (feel free to argue that this is not the case):

      The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous.'

      Also, there have been numerous occasions where the supreme court has ruled against the government. But don't let these details bother you (after all, YOU know that is is true, and yet you wish to ignore it in order to make such a silly statement.)

    • by blair1q (305137)

      Can I color you ignorant of the fact that the government is three branches, and the Judiciary sides with only itself and has no skin in the game?

      The judge may have made a political decision, but those things go against the government as much as for it. In this case, though, the judge was not blindly finding for the government, he was blindly following the law.

      This perp did a crime, and he's trying to get out of it by saying that putting him in jail means the public can't see his subversive tattoos, so the

      • by Chaonici (1913646)

        > This perp did a crime

        Feel free to tell us which US law Rojadirecta breaks when it links to other sites.

        • by Americano (920576)

          According to the takedown notice posted at one seized site: "This domain name has been seized by ICE - Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court under the authority of 18 U.S.C. Sections 981 and 2323."

          It goes on to quote, "Willful copyright infringement is a federal crime that carries penalties for first time offenders of up to five years in federal prison, a $250,000 fine, forfeiture and restitution (17 U.S.C. Section 506, 18 U.S.C. Section 23

          • by Chaonici (1913646) on Friday August 05, 2011 @06:16PM (#37001296)
            Correction: Those are the laws the sites are alleged to have violated. No court has yet ruled that Rojadirecta broke any laws.

            Anyway, I would contest your implied assertion that linking is copyright infringement. Rojadirecta does not host copyrighted content, it links to sites that may do so.
            • by mijelh (1111411)

              No court has yet ruled that Rojadirecta broke any laws

              Actually a Spanish court ruled that rojadirecta didn't break any -Spanish- law.

          • by skr95062 (2046934)

            So are you saying that this is OK?

            Where is the due process? That inconvenient thing that is in the constitution that ICE and others seem to forget about. Not that they really care, if the Obummer administration had it's way the constitution would be gone, which would resolve a bunch of their problems.

            Aside from that, since when does US Law apply to a person or persons or in this case a company that is not located in the US?

            This company is located in Spain and as I recall what they are doing does not viola

            • by blair1q (305137)

              This is the due process. The court has enjoined the defendant from engaging in his criminal activity while it adjudicates his guilt. You don't get to keep punching the cop after he arrests you for punching him.

              • by skr95062 (2046934)

                Yes, you do.

                However I would not advise doing that as you are gong to get a horrific beat down once he gets the cuffs on you. In addition to more charges.

                There has not been a trial. They just want their property back, which is what this was about. ICE took the domain without due process, they have not been criminally charged with anything yet.

              • by AK Marc (707885)

                You don't get to keep punching the cop after he arrests you for punching him.

                The cop will escalate the violence until you are unable to punch anyone, the cop included. However, if you hit a cop, the government (the cop, in that example) has probable cause that you have committed a crime and are continuing to do so. With linking to a site being declared a crime (when it should have been a tort at best, why are we criminalizing what's essentially a contract violation?), there isn't even certainty that it is a crime. There should be a ruling that he broke the law before his assets are seized. At the very least, there should be case law laying out the circumstances under which such actions can be taken for copyright infringement.

        • by mijelh (1111411)
          Also, they were already acquitted in Spain.
  • by Anonymous Coward on Friday August 05, 2011 @04:27PM (#37000390)

    DO NOT register your domains in US.

    • Use an alternative to DNS, such as Namecoin. [bluishcoder.co.nz] It's only a matter of time before RIAA/MPAA make their way to controlling the entire DNS.
      • Oh yeah. That'll work. I'm sure I'll be able to use that for DNS just like I can use Bitcons to pay my bills.

        (Oops! Did I forget the i in Bitcon?)

        Names expire after 12000 blocks unless renewed with an update

        So... not that it'll ever happen, but what happens when there are more than 12000 namecoin top level "domains"? That's a pretty short-sighted limit...

        • The BitCoin software is nothing more than an open source project. It can be used for things that have nothing to do with paying anyone, as in this example where it is used to secure domains. As far as the 12000 limit goes, I find it hard to believe the developers went so far as to create the system without considering how to handle such issues. Perhaps you should contact them and ask them? What I like about Namecoin is that it is completely decentralized.
        • There are an unlimited number of domains. They expire 12,000 blocks after the last renewal (so you have to continue spending resources to maintain a name, just like you have to keep paying money to maintain a .com), but there can be multiple renewals per block.

          You can check over here to see recent transactions (of which there are usually several per block): http://explorer.dot-bit.org/ [dot-bit.org]

    • Or, like... don't break the law.

      • That's right! No one in authority in the US has never, ever manipulated laws because a lobbyist gave them money. Furthermore no one in authority has ever harmed a non-lawbreaker.
        • That's right! No one in authority in the US has never, ever manipulated laws because a lobbyist gave them money. Furthermore no one in authority has ever harmed a non-lawbreaker.

          So we shouldn't have any laws then because they *might* be unjust or because law enforcement could potentially overstep their authority?

          This site broke the law. They got shut down. They happened to have a forum. If you have a church in a meth lab you can't claim freedom of religion when the building is seized.

          • by Chaonici (1913646) on Friday August 05, 2011 @05:53PM (#37001026)

            > So we shouldn't have any laws then because they *might* be unjust or because law enforcement could potentially overstep their authority?

            We shouldn't have unjust laws. We should have measures in place to prevent and punish abuse of power by the government.

            > This site broke the law.

            Which law?

            > They got shut down.

            No, they didn't. The site isn't hosted in the US, and is legal in the country in which it's hosted. The US domain registrars revoked their .com and .org domains.

            > They happened to have a forum. If you have a church in a meth lab you can't claim freedom of religion when the building is seized.

            Feel free to tell us which law Rojadirecta breaks when they link to other sites. Then feel free to tell us why US laws should apply to a Spanish website.

      • by Chaonici (1913646) on Friday August 05, 2011 @05:08PM (#37000704)

        Feel free to tell us which law Rojadirecta breaks when they link to other websites.

        • by Xtifr (1323)

          Contributory copyright infringement, the same thing that got Grokster.

          • by Stray7Xi (698337)

            Contributory copyright infringement is not anywhere in copyright law. It is something the courts made up.

      • hahahahahaha you must be new here. and by here i don't mean slashdot, i mean the world. welcome to life! if you can manage not to break any laws, and not kill yourself, you still get last place. sucks, don't it?
      • by Hatta (162192)

        What law is violated when posting links?

      • by mijelh (1111411)

        Or, like... don't break the law

        That may or may not be true, as there have been no trial (apart from one in Spain where there were acquitted).

  • Not very surprising (Score:4, Informative)

    by aaaaaaargh! (1150173) on Friday August 05, 2011 @04:28PM (#37000398)

    Avoid .com domains, and if you're really successful also avoid doing business with the US altogether because of the patent trolls. Then you should be (mostly) fine for some time. Oh...I forgot...and don't link to anything you haven't written yourself...ever!

    • by alphatel (1450715) *
      If you are a US corp with TM/Patent/Copyrights, use .com and stay in the US. If you are anything else, fear the reaper!
    • Oh...I forgot...and don't link to anything you haven't written yourself...ever!

      Slashdot editors: hear this man's advice!

  • but this judge seems like an actual idiot.

    • It was a poor argument from the get go. Saying that their free speech rights are impeded because people might have trouble finding the site or have trouble accessing the forums is a bit of a stretch.

      If you're going to claim first amendment go ahead and claim it right on the subject at hand: Is saying "There's free stuff over there!" protected by the first amendment? Obviously there are arguments to make in both directions along those lines, I just think that if you think the law is crap you should argue

      • Is saying "There's free stuff over there!" protected by the first amendment?

        Well, if we're only talking about the first amendment here (which seems to be ignored often), I'd say so. It certainly doesn't mention otherwise.

      • by Zelucifer (740431)

        You might want to consider reading up on the First Amendment. Not being able to restrict speech is a very big part of free speech. Restraining speech before it occurs, or regulating where it can occur is a dangerous, immoral thing.

        On the subject of the law being "crap". The law isn't crap, the gross violation of the law that ICE used to seize these domains is the "crap". Every single possible constitutional protection we have in regards to free speech, search and seizure, was violated and then this judge fo

      • by skr95062 (2046934)

        It was a poor argument from the get go. Saying that their free speech rights are impeded because people might have trouble finding the site or have trouble accessing the forums is a bit of a stretch.

        That is correct. What they should have argued is that the seizure violated the 5th amendment, specifically the due process clause "No person shall... be deprived of life, liberty, or property, without due process of law." ICE has deprived them of their property, a domain name is property, without due process.

  • by Chaonici (1913646) on Friday August 05, 2011 @04:32PM (#37000416)
    According to the EFF [eff.org]:

    The fact that you can get information via a second route does not mean that there is no speech problem with shutting down the first one. In a 1939 case, Schneider v. New Jersey, for example, the Supreme Court held that

    one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.

    It repeated this basic tenet some forty years later in Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.:

    We are aware of no general principle that freedom of speech may be abridged when the speakerâ(TM)s listeners could come by his message by some other means....

    I'm glad I'm not the only one who believes that this ruling is questionable, and is one step closer to a World Wide Web that is completely at the mercy of copyright holders.

    • by cHiphead (17854)

      The ruling looks a lot like copyright trumping the First Amendment.

      • by Shaterri (253660)

        Isn't this effectively the core purpose of copyright law? A hundred years of precedent suggest that my free speech rights don't extend to, for instance, performing my own stage production of Spiderman for all the world to see, or for writing and selling (or giving away) my word-for-word version of "Arguing With Idiots", and I'm not sure why anyone would expect results in the digital world to be any different.

        • by Xeranar (2029624)

          Yes, yes it is the core purpose of copyright law because the freedom of speech is designed to allow people to speak out against more powerful entities whether they are governmental or private in nature. It doesn't allow you to post a billboard with the pass code to the bank vault at the first national bank. It doesn't allow you to post material that can be profited from either because otherwise our literary world would fall pray to cheap copies as it did PRIOR to copyright protection. Many authors saw no

        • You're confusing copyright with copyright enforcement. Copyright is to some extent in conflict with the first amendment, but there are a bunch of things built into it that try to keep it from actually conflicting: The idea/expression dichotomy, fair use, etc.

          And just because copyright itself, i.e. verbatim copying of others' expression, doesn't violate the first amendment doesn't mean that copyright enforcement mechanisms get a free pass. For example, the government obviously can't prohibit all anonymous sp

      • That's not very surprising, since copyright was originally seen as a violation of the first amendment. It was only allowed in combination with the exceptions known as Fair Use. (Which, IMHO, do not significantly change the equation. The only reasonable interpretation of "Congress shall make no law ... abridging the freedom of speech" is that speech—i.e., communication, of whatever form or complexity—can never be a violation of the law by itself. Copyright obviously violates that by making some f

        • Thanks for mentioning this. Here's some more info for folks on that argument:

          The power that allows Congress to have a copyright law is in the original Constitution.

          But, after that, the Constitution was amended with the Bill of Rights. The First Amendment [google.com] ("Congress shall make no law ... abridging the freedom of speech") effectively nullifies the copyright clause.

          Note: Even though the amendment rescinding Prohibition specifically mentioned the Prohibition amendment, there are a bunch of other famous/infamous

    • by blair1q (305137)

      Except that this isn't a 1st-Amendment case, and the 1st-Amendment argument wasn't enough to stop the case it is from proceeding.

      You cant claim that taking away your megaphone and putting you in jail violates your 1st-Amendment rights, but you can't expect it to set you free when you were using your speech to distract from the jewelry-store robbery your accomplices were committing.

      • by Chaonici (1913646)

        Rojadirecta does not host copyrighted content. It links to other sites that may do so. If you believe that linking to sites that may host copyrighted material is illegal, then you can introduce some support for this position. Otherwise, this is most definitely a First Amendment issue because the government denied Rojadirecta an avenue for expressing itself.

        • by blair1q (305137)

          The law seems to cover being an aggregator for the purpose of assisting copyright violation.

          Shutting that down is not a first-Amendment violation, even if it also hosts a free-speech forum. If it was shut down for hosting a free-speech forum, that would be a first-Amendment violation.

          What defendant should have done is said that being a link aggregator is a free-speech issue. That is the fight he should be having, and how to defend himself against what the law appears to say. Then he'd be doing some good.

  • by Saxerman (253676) * on Friday August 05, 2011 @04:33PM (#37000430) Homepage

    The actual ruling here is on a specific provision of the law where a seized domain owner to petition the courts to have the domains returned.

    (Relevant part of the code here: http://www.law.cornell.edu/uscode/18/983.html [cornell.edu])

    The judge is merely ruling here that this provision doesn't meet the requirements of this specific provision.

    The Judge continues, "Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate in enacting 983. See 145 Cong. Rec. H4854-02 (daily ed. June 24, 1999) (statement of Rep. Hyde) (“Individuals lives and livelihoods should not be in peril during the course of a legal challenge to a seizure.”). Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition."

    • by cHiphead (17854)

      Where in the First Amendment does it allow the law to abridge freedom of speech provided there is no 'substantial hardship'?

      • It's an invisible addition that can be used whenever it is convenient, of course!

      • Probably in the same part that allows the law to abridge 'commercial' and 'obscene' speech.. It's written with invisible ink that only a judge can see..

      • by Saxerman (253676) * on Friday August 05, 2011 @05:30PM (#37000848) Homepage

        I'm not saying this isn't a free speech issue. I think these ICE domain seizures are total bullshit.

        I'm merely pointing out that the part in the rules which says you can declare something a violation on First Amendment grounds hasn't happened yet. This is a ruling on a petition which is covered by the same rules that ICE used to seize the domains in the first place. And that section of law declares that after the domain Nazis seize your domains, you get to file this petition to declare the seizure bogus.

        In the petition, you can appeal to the judge on several different grounds. The specific part of law they're claiming in their petition is that they that they're suffering an undue financial hardship. On those grounds the judge says he's denying the petition and letting the case move forward.

        They haven't yet reach the part in the court drama where they get to ask the judge to throw out the case on First Amendment grounds. It's still coming up after the next few commercials.

  • by DarkOx (621550) on Friday August 05, 2011 @04:37PM (#37000468) Journal

    It appears from what the judge wrote that he considered the content being hosted at the domain when he determined seizing the domain did not violate the first amendment.

    IANAL but it almost seems like the take away here is that a bunch of links are not protected speech, it seems to leave open the possibility seizing a domain might violate an individuals freedom of speech.

    Had the domain pointed to a web server hosting pages about white supremacy, jihad, golf or similar it might have been protected. I am not sure what impact this ruling will have at all.

    • Read the decision. The ruling is that this is not a violation of this individual's free speech because the information being presented is for mere business, rather than political, purposes.

      Now contrast that with "Citizens United" and other recent court rulings that have held corporate commercial speech is absolutely protected by the First Amendment.

      Now take a look at the recent unprecendented wave of corporate donations and junkets being flooded into the judiciary, including the Supreme Court. For the first

  • by monk (1958) on Friday August 05, 2011 @04:38PM (#37000478) Homepage

    please route around it.

  • How can forcefully seizing a domain name, which is not criminal in any way, not be a violation of freedom of speech.
    • Re: (Score:3, Insightful)

      by mcmonkey (96054)

      How can forcefully seizing a domain name, which is not criminal in any way, not be a violation of freedom of speech.

      Easy. The motivation for seizing the domain was not speech.

      If I take my manifesto and print it on the side of my car, and then go out and run red lights and ignore all sorts of traffic regulations, plow through a couple farmers markets, when I get pulled over and my car taken away, I can't plead freedom of speech.

      Perhaps if I otherwise obey the rules of the road and it's obvious I'm getting pulled over strictly for the words written on my car, then I can make that case.

      I don't know all the gritty details o

      • by Chaonici (1913646)

        > The motivation for seizing the domain was not speech.

        Of course it was. Rojadirecta does not host any copyrighted content; it merely links to other sites that do. Until a court ruling explicitly says otherwise, linking is protected speech. By seizing its domain names, the US government was preventing people from accessing Rojadirecta's website, and therefore denying Rojadirecta their right to free speech.

      • by iamwahoo2 (594922)
        The bill of rights was intentionally written in plain English so that people like you could not argue that the word "speech" does not mean "speech". Clearly they underestimated you.
      • I am free to stand on a street corner and speak a series of 1s and 0s that when encoded in a computer can be interpreted as video. That does not mean linking to a copyrighted video for which I do not have the copy right is protected by free speech.

        So posting the video is OK, but linking is bad because it is like driving through a farmers' market? And not everything spoken is speech, unless it can be interpreted by a computer in which case it is? I think we could clarify things by just admitting that the courts recognize copyrights to supersede free speech.

    • by LWATCDR (28044)

      Do you want a bunch of famous actors and actresses to campaign for you? Got the Democrats.
      You want big donations from Comcast and Sony? Got the Republicans.

      It is simple you see famous actors, actresses, directors, and producers are special creative people that are better than the likes of you and me and must be protected. Why are you complaining? Don't you want to give them your money and freedom to make sure you can see Transformers 5?

  • by Anonymous Coward

    Let's take away this judge's phone number. He won't suffer any substantial hardship, because he can just tell everyone to use his new number.

  • The Judge argues that seizing Rojadirecta’s .com and .org domains does not violate the First Amendment of the Constitution.

    This could be true, if the ability wasn't abused. Unfortunately, it is already being abused for things like taking down perceived 'hacking' sites and sites supporting the freedom of information, such as those touting WikiLeaks or pro-Manning sites. I have no reason to believe this ability won't be abused until it *IS* a violation of the 1st amendment. At that time, it will already be too late, and the US will no longer be a safe place to talk or use the Internet.

    How about instead of taking down copyright vi

  • Maybe I'm missing something.. but doesn't it seem like the First is the last amendment you'd want to argue in this case? What about the fourth? Or the Due Process clause of the 14th?

    I mean, nobody involved in the site has been actually charged with a crime.. so isn't the idea that the domain was being used to support a crime invalid? If you want to take it, you need to press charges.

  • Should be on the Supreme Court. He clearly has demonstrated that he's 100% pro-corporate mafia and anti-First Amendment. He'd be a perfect fit for SCOTUS, don't ya think?

    I really wonder how much the entertainment mafia pays these judges to casually ignore decades of judicial precedent as well as our Bill of Rights?
  • by nurb432 (527695) on Friday August 05, 2011 @07:48PM (#37002378) Homepage Journal

    When the time comes that squelching speech doesn't violate it in the eyes of the federal courts, we have no rights at all and only 'privileges' given out, and removed, at their whim.

  • by unity100 (970058) on Saturday August 06, 2011 @02:47AM (#37004628) Homepage Journal
    Appalling to see how sold out, buyable the justice system is, in america.

    but whaddya know - it couldnt end up in any other way, when you put everything to sale for the highest bidder, in a systme like capitalism.

    actually it is still much better than what it could - if the 'free marketers' got full swing back in its development, we could have private army, private judiciary, private police by now.

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